Citation Nr: 0122819
Decision Date: 09/19/01 Archive Date: 09/24/01
DOCKET NO. 01-01 392A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an evaluation in excess of 20 percent for
otosclerosis with bilateral hearing loss.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
ATTORNEY FOR THE BOARD
M.A. Carsten, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1950 to
March 1954.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 2000 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia, which denied the veteran's claim for an evaluation
in excess of 20 percent for otosclerosis with bilateral
hearing loss. The veteran subsequently perfected this
appeal.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for an
equitable disposition of the veteran's appeal.
2. In December 1999, the veteran's bilateral hearing loss was
manifested by average puretone thresholds at 1000, 2000,
3000 and 4000 Hertz of 53 in the right ear and 106 in the
left ear, with speech recognition ability of 92 percent in
both ears.
3. In February 2001, the veteran's bilateral hearing loss was
manifested by average puretone thresholds at 1000, 2000,
3000 and 4000 Hertz of 51 in the right ear and 85 in the
left ear, with speech recognition ability of 88 percent in
the right ear and 64 percent in the left ear.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 20 percent for
otosclerosis with bilateral hearing loss have not been met.
38 U.S.C.A. § 1155 (1991); 38 C.F.R. §§ 4.85, 4.86 and 4.87,
Diagnostic Code 6202 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that the 20 percent evaluation currently
assigned for otosclerosis with bilateral hearing loss does
not adequately reflect the severity of his disability.
According to the veteran, his hearing loss is worse than it
ever was. The RO originally granted service connection for
bilateral otosclerosis in November 1954 and assigned a 40
percent evaluation. In January 1964, the RO decreased the
evaluation to 10 percent. Subsequently, in July 1973, the RO
increased the evaluation to 20 percent, effective January 31,
1973.
As an initial matter, the Board notes that there has been a
significant change in the law during the pendency of this
appeal. On November 9, 2000, the President signed into law
the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No.
106-475, 114 Stat. 2096 (2000); 38 U.S.C.A. § 5100 et seq.;
see Duty to Assist Regulations for VA, 66 Fed. Reg. 45,620-
45,632 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156, 3.159, 3.326). This law eliminated the concept of a
well-grounded claim, redefined the obligations of VA with
respect to the duty to assist, and imposed on VA certain
notification requirements. Id.
First, VA has a duty to notify the veteran of any information
and evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2001); 66 Fed. Reg.
45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R.
§ 3.159(b)). The veteran was informed in the June 2000
rating decision, the October 2000 statement of the case (SOC)
and the June 2001 supplemental statement of the case (SSOC),
of the evidence necessary to warrant an increased evaluation
for otosclerosis with bilateral hearing loss. The Board
concludes that the discussions in the rating decision, the
SOC and the SSOC adequately informed the veteran of the
evidence needed to substantiate his claim and therefore
complied with VA's notification requirements.
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A (West Supp. 2001); 66 Fed. Reg. 45,630-45,631 (Aug.
29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). In March
2001, the RO sent the veteran a letter informing him of VA's
duty to notify and assist pursuant to the VCAA. The veteran
responded to this letter, indicating that he had received
treatment at VAMC Birmingham. In an effort to clarify this
information, the RO contacted the veteran who indicated he
has not received treatment at VAMC Birmingham since
approximately 1964. The veteran received follow-up treatment
at VAMC Decatur but has had no recent treatment at this
facility. The veteran further indicated that he last
received treatment related to his hearing loss on February 7,
2001, at Dr. David Edward's office. The Board notes that the
February 2001 report is of record. The veteran has not
identified any additional records which may be pertinent to
his claim. Further, in keeping with VA's duty to assist, the
veteran was provided a VA audiometric examination in December
1999.
The Board finds that the duty to notify and assist under the
VCAA has been satisfied and under the circumstances of this
case, a remand would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided).
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4. Disability ratings are
intended to compensate impairment in earning capacity due to
a service-connected disorder. 38 U.S.C.A. § 1155 (West
1991). Evaluation of a service-connected disorder requires a
review of the veteran's entire medical history regarding that
disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1
Vet. App. 589 (1991). If there is a question as to which
evaluation to apply to the veteran's disability, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria for that rating. Otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do
not give past medical reports precedence over current
findings. Francisco v. Brown, 7 Vet. App. 55 (1994).
Pursuant to VA's rating schedule, the VA ascertained the
severity of the veteran's otosclerosis with bilateral hearing
loss pursuant to Diagnostic Code 6202-6100. Under Diagnostic
Code 6202, otosclerosis is to be rated as hearing impairment.
38 C.F.R. § 4.87, Diagnostic Code 6202. The assignment of a
disability rating for hearing impairment is derived by a
purely mechanical application of the rating schedule to the
numeric designations assigned after audiometric evaluations
are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992).
The veteran's representative argues that the evaluation
assigned to the veteran's disability should be based on the
same criteria under which he was originally assigned a 40
percent evaluation in 1954. The Board notes that the Rating
Schedule for ear disorders was revised effective June 10,
1999. The veteran's claim for an increased evaluation was
filed in October 1999 and therefore, the revised regulations
are applicable.
Under the regulations in effect from June 10, 1999, an
examination for hearing impairment must be conducted by a
state-licensed audiologist and must include a controlled
speech discrimination test (Maryland CNC) and a puretone
audiometry test. Examinations are to be conducted without
the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate
the degree of disability from defective hearing, the rating
schedule establishes 11 auditory acuity levels from Level I
for essentially normal acuity through Level XI for profound
deafness. These are assigned based on a combination of the
percent of speech discrimination and the puretone threshold
average, as contained in a series of tables within the
regulations. 38 C.F.R. § 4.85(b). The puretone threshold
average is the sum of the puretone thresholds at 1000, 2000,
3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85(d).
When the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear will be evaluated separately. 38 C.F.R. § 4.86(a).
When the puretone threshold is 30 decibels or less at 1000
Hertz, and 70 decibels or more at 2000 Hertz, the rating
specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results in the higher numeral. That numeral will
then be elevated to the next higher Roman numeral. Each ear
will be evaluated separately. 38 C.F.R. § 4.86(b).
Service connection was originally granted in 1954 and
therefore, when evaluating the veteran's claim for increase,
the present level of disability is of primary concern. See
Francisco, supra. Upon VA audiometric examination in
December 1999, the veteran's puretone threshold average, in
decibels, was 53 in the right ear and 106 in the left ear.
Maryland CNC speech discrimination testing revealed speech
recognition ability of 92 percent for both ears.
In February 2001, upon examination by a private audiologist,
the veteran's puretone threshold average, in decibels, was
reported as 51 in the right ear and 85 in the left ear.
Maryland CNC speech discrimination testing found the
veteran's speech discrimination to be 88 percent in the right
ear and 64 percent in the left ear.
Based on the December 1999 VA audiometric examination, the
veteran has level I hearing in the right ear. See 38 C.F.R.
§ 4.85, Table VI. In determining the numeric designation for
the left ear, the Board notes that the puretone thresholds at
each of the four specified frequencies is 55 decibels or
more. Therefore, it is necessary to determine which Table
(VI or VIa) results in the higher numeral. 38 C.F.R.
§ 4.86(a). Under Table VI, the veteran has level IV hearing
in the left ear. Under Table VIa, the veteran has level XI
hearing in the left ear. Applying the relevant numeric
designations to Table VII, the evaluation for hearing
impairment is 10 percent. 38 C.F.R. § 4.85, Diagnostic Code
6100.
Based on the February 2001 private audiometric examination,
the veteran has level II hearing in the right ear. 38 C.F.R.
§ 4.85, Table VI. As in December 1999, puretone thresholds
at each of the four frequencies in the left ear were 55 or
more and therefore, the left ear must be evaluated under both
Table VI and Table VIa to determine which is most
advantageous to the veteran. See 38 C.F.R. § 4.86(a). Under
both Table VI and Table VIa, the veteran has level VIII
hearing in his left ear. Thus, the evaluation for hearing
impairment is 10 percent. 38 C.F.R. § 4.85, Diagnostic Code
6100.
The veteran's otosclerosis with bilateral hearing loss is
currently evaluated at 20 percent. The veteran is not
entitled to an evaluation in excess of 20 percent because as
discussed, the severity of the veteran's disability only
warrants a 10 percent evaluation pursuant to the Rating
Schedule. Notwithstanding, the veteran's current 20 percent
evaluation has been in effect since January 1973 and
therefore, is protected. 38 C.F.R. § 3.951(b) (a disability
which has been continuously rated at or above any evaluation
of disability for 20 or more years for compensation purposes
will not be reduced to less than such evaluation except upon
a showing that such rating was based on fraud).
Finally, to accord justice in an exceptional case where the
schedular standards are found to be inadequate, the field
station is authorized to refer the case to the Chief Benefits
Director or the Director, Compensation and Pension Service
for assignment of an extraschedular evaluation commensurate
with the average earning capacity impairment. The criterion
for such an award is a finding that the case presents an
exceptional or unusual disability picture with related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical
application of regular schedular standards. The Court has
held that the Board is precluded by regulation from assigning
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court further held that the Board must address referral
under 38 C.F.R. §3.321(b)(1) only where circumstances are
presented which the Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995). In this case, the record
does not contain any evidence of marked interference with
employment or frequent hospitalizations due to the veteran's
disability. Having reviewed the record with these mandates
in mind, the Board finds no basis for further action.
VAOPGCPREC. 6-96 (1996).
ORDER
An evaluation in excess of 20 percent for otosclerosis with
bilateral hearing loss is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals